National Consumer Disputes Redressal
Siddhartha Loiwal vs Vatika Ltd. on 15 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1344 OF 2017 1. SIDDHARTHA LOIWAL S/O SHRI KISHAN LOIWAL,
R/O FLAT-B-1, GROUND FLOOR,
MEGA FLOORS, SUNCITY, SECTOR-54, GURGAON, HARYANA-122002. ...........Complainant(s) Versus 1. VATIKA LTD. THROUGH ITS DIRECTORS,
4TH FLOOR, 'VATIKA TRIANGLE',MEHRAULI- GURGAON ROAD,SUSHANT LOK PHASE-I, BLOCK-A, GURGAON-122002. HARYANA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Vidur Mohan, Advocate
: Mr. Shefali Munde, Advocate For the Opp.Party : Mr. S.K. Sahni, Advocate
Dated : 15 Mar 2023 ORDER
1. Heard Mr. Vidur Mohan, Advocate, for the complainant and Mr. S.K. Sahni, Advocate, for the opposite party.
2. Siddhartha Loiwal has filed above complaint, for directing the opposite party to (i) refund entire amount deposited by him with interest @18% per annum from the date of respective deposit till the date of refund; (ii) award compensation for mental agony; (iii) award costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that M/s. Vatika Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of "Vatika Tranquil Heights" at Sector-82-A, Gurgaon in the year, 2013 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked a flat on 15.11.2013 and deposited booking amount of Rs.8/- lacs. The opposite party raised a demand of Rs.1391346.53, vide letter dated 14.01.2014. The complainant, vide an email dated 15.01.2014, requested to share the draft of BBA, so that he could know the terms and conditions, as by that time allotment letter was not issued. The opposite party wrote a reminder mail dated 20.01.2014, for payment. The complainant paid total Rs.3478366/- due to repeated demand. Then a meeting was arranged on 08.10.2014, in which, the complainant came to know that (i) the opposite party had increased super area from 2150 sq.ft to 2290 sq.ft., (ii) the complainant was allotted a flat of preferential location without his consent, (iii) Tower E, in which the complainant was allotted the flat, had 4 apartments on every floor and all the apartments naturally had a corner and PLC charges was realized showing it as a corner flat. The opposite party issued allotment letter dated 08.10.2014, allotting Unit No.302, Tower-E, area 2290 sq.ft., "construction link payment plan" and proposed layout but it did not contain the terms and conditions. The opposite party again raised demand of Rs.695673/-, which was deposited on 19.11.2014. The opposite party raised demand of Rs.271798/- through letter dated 16.02.2015, for increased area. The opposite party supplied a format of the application for extension of period for payment and asked to sign and return it. Later on, the opposite party vide email dated 10.03.2015, informed that interest free extension was valid up to 16.03.2015 and the date was extended for fifteen days. The complainant made payment within extended period. The opposite party again raised demand, which was protested by the complainant and he demanded for execution of builder buyer agreement, which was required for obtaining the loan. The opposite party vide email dated 04.03.2015, informed to take loan from HDFC or ICICI Bank and on sanction of the loan, builder buyer agreement would be executed. After repeated requests, the opposite party sent Builder Buyer's Agreement on 21.07.2015, in which, the complainant found variations from brochure i.e. (i) The project was marketed as built on 2 sides of the road but map supplied with BBA showed that the road was only on one side of the project. (ii) The project was marketed approx. on 13 acres land but in BBA only 11.22 acres land was shown. (iii) BBA contained Price Escalation clause. (iv) Due date of possession was shown 48 months from the date of BBA. The complainant wrote several emails during 29.07.2015 to 25.09.2015, raising his protest against one sided and arbitrary clauses but the opposite party did not give any satisfactory reply. In the meantime, bereavement happened in the family of the complainant. Due to delaying the commencement of the project, the period of licence also expired. The opposite party sent reminder dated 13.10.2015 for signing BBA and returning its one copy with warning to cancel allotment. The opposite party issued demand letter dated 23.10.2015 for Rs.1233403/- on "Start of Excavation". The complainant proposed to deposit it under protest on 08.11.2015, but he was coerced to cut "under protest". The complainant approached HDFC and ICICI Bank for sanction of the loan, who informed that the project was not approved by the bank till then. The complainant raised query/protest as to how renewal of licence was granted for 11.85 acres land, although original licence was for 11.218 acres land and demanded environmental clearance but the opposite party did not respond. The opposite party issued reminder dated 10.12.2015 and final notice dated 22.01.2016 to the complainant for signing BBA. The complainant deposited Rs.11697/- on 04.01.2016 for TDS, Rs.9433/- on 08.12.2016 for VAT. The complainant, vide emails dated 13.12.2016 and 04.01.2017, inquired about the progress of the project but did not receive any reply. The complainant visited the site on 29.12.2016 and found that due to issue relating to ownership of the land, the project was fully stalled. The opposite party raised demand on "Start of Foundation" through letter dated 15.02.2017. The opposite party issued a reminder dated 05.04.2017, for above demand with warning to cancel the allotment. Then this complaint was filed on 11.05.2017, alleging deficiency in service and unfair trade practice.
4. The opposite party filed its written reply on 18.07.2017 and contested the complaint. The opposite party stated that after paying 1/3rd of the total cost, the complainant went completely bust financially and started exploring ways and means to wriggle out of the deal. Having paid the sums due in respect of the apartment in question, he did not return Builder Buyer Agreement sent to him after his signature in spite of repeated reminders by the opposite party to him. Thereafter the complainant started finding faults in the contents of the agreement and tried to rake up a false and baseless controversy by levelling bland allegations about the alleged non-financing of the said apartment by the bank without adducing an iota of documentary evidence in this respect. It is also not proved that the complainant has ever applied for a home loan before any financial institutions. The complainant has also committed default in payment of the instalment. The Builder Buyer Agreement was sent to him on 21.07.2015 for his signature. In case he had signed it then, the possession would have been delivered to him in July, 2019. The complaint was filed in the year 2017 which is premature. The present complaint has been filed on various false and frivolous allegations and is liable to be dismissed. The complainant has supressed the material fact and has also tried to mislead the Commission by subversions and distortion. The complainant is not a consumer rather booked the flat as speculative investors. Annexure-3 of the complainant reveals that the complainant expressed interest for investing in three bedroom residential apartment in the proposed "Tranquil Heights" on 15.11.2013. The said expression of interest does not contain any condition or assurance about handing over possession within 36 months or by November, 2016 as alleged. The opposite party had not given any verbal assurance for handing over possession within 36 months or floated any advertisement of the project "Tranquil Heights" in the year 2013. The complainant paid only approximately 1/3rd price with delay and scattered manner. The complainant was aware of Licence No.22 of 2011 dated 24.03.2011 issued in favour of the opposite party for development of the project. Said Licence was renewed on 15.10.2015. In order to wriggle out from the contract the complainant raised frivolous queries which have been replied by the opposite party. The complaint has no merit and liable to be dismissed. Due dates of instalment and dates of deposit by the complainant are given below:-
Instalment/Sum Due
Amount
Due Date
Amount Paid
Date Paid
Expression of Interest
695673
15.11.13
800000
15.11.13
Within 3 months
1391347
13.02.14
266150
1000000
17.02.14
TDS
20870
20870
21.02.14
Within 6 Months
1391347
15.05.14
1377432
15.05.14
TDS
13914
13914
21.02.14
Interest on overdue instalments
7811
24.02.14 to 11.06.14
Not Paid
Within 12 months
695673
19.11.14
695673
20.11.14
Balance till Allotment incl.TDS
271798
04.02.15
5962
256507
9329
17.03.15
17.03.15
24.03.15
Interest on overdue instalments
45972
09.03.15 to 01.4.15
Not paid
Start of Excavation
1233403
08.11.15
1233399
08.11.15
TDS/VAT
21130
07.11.16
11697
9434
08.02.16
09.12.16
Start of Foundation
816820
03.03.17
Not Paid
Total
6605758
5700367
5. The complainant filed Rejoinder Reply and Affidavit of Evidence & Affidavit of Admission/Denial of documents of Siddhartha Loiwal and documentary evidence. The opposite party filed Affidavit of Evidence of Vipin Marya and Affidavit of Admission/Denial of documents of Sanjay Kumar Jha and documentary evidence. Both the parties have filed their written synopsis.
6. The opposite party has filed IA/5605/2021, for dismissing the complaint as not maintainable alleging that the complainant was not a consumer. The opposite party stated that the complaint owned a residential house i.e. Flat No. B-1, Ground Floor, Mega Floors, Sun City, Sector-54, Gurgaon-122002 and had booked (i) Apartment No. A-1501 in the project "Presidia" of Pioneer Urban Land & Infrastructure Ltd. on 13.05.2010, (ii) Apartment No. E-302 in "Tranquil Heights" on 15.11.2013, (iii) Two apartments as mentioned by HDFC in the email dated 02.11.2015. From which it is proved that the complainant had not booked Apartment No. E-302 in "Tranquil Heights" for his own use but as a speculative for future gain. The complainant filed his Reply to above application and stated that Flat No. B-1, Ground Floor, Mega Floors, Sun City, Sector-54, Gurgaon-122002, belonged to his father; as the complainant did not have any accommodation, he was residing with his father. The complainant booked Flat No.203 in the project "Orchid Petals" in his name in 2004 but due to structural issues, it was sold to Lt. Gen. Raj Kumar on 23.08.2010, before taking its possession. Due to structural issue in above flat, the complainant booked Apartment No. A-1501 in the project "Presidia", in the year 2010, in his name but could get possession over it till due date and the complainant has filed CC/78/2020, which is pending before this Commission. The complainant took loans for purchasing above flats, which were repaid. Then the complainant booked Apartment No. E-302 in "Tranquil Heights" for residence of his family. He has denied that Apartment No. E-302 has been booked for commercial purposes.
7. We have considered the arguments of the parties and examined the record. The word "consumer" has been defined under Section 2 (1) (d) and word "service" has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-
Section-2 (1) (d).- "consumer" mean any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose;
Explanation.- For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self employment.
Section 2(1) (o):- "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
8. The term "housing construction" has been added by Act No.50 of 1993, under Section-2(1) (o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1) (d) (i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1) (d) (ii) was also amended and the term "but does not include a person who avails such services for any commercial purpose" has been added in it and the Explanation was placed in last. Scope of the Explanation as well as expressions "commercial purpose" and "the purposes of earning livelihood by means of self-employment" came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression "commercial purpose" has not been defined, as such, its dictionary meaning has to be taken into consideration. "Commerce" means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the "consumer" so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. Supreme Court in Civil Appeal No. 19611 of 2013 Sanjay Bansal Vs. M/s. Vipul Limited (decided on 12.04.2019) and Lilavati Kitrilal Mehta Medical Trust Vs. Unique Shanti Developer, (2020) 2 SCC 265, held that number of flats booked by the buyer is not a decisive factor of 'consumer' rather the purpose for which the flats were booked/purchased has to be examined.
9. The complainant admitted that he had sold Flat No.203 in the project "Orchid Petals" to Lt. Gen. Raj Kumar on 23.08.2010, before taking its possession but has stated that it was sold due to structural issues. There is no evidence to prove that the complainant is engaged in purchasing and selling the properties. The complainant has stated that he had booked the flat in dispute for residence of his own family and not for any commercial purpose. There is no reason to disbelieve the statement of the complainant. IA/5605/2021 is rejected.
10. The complainant has filed above complaint for refund of his amount along with consequential relieves. The complainant took plea that the opposite party advertised the project "Tranquil Height" in the year 2013, in which they represented that the said project would be launched shortly and possession would be delivered within 36 months of the booking. Some downloaded advertisements have been filed but it does not contain any clause for delivery of possession within 36 months of the booking. There is no mention for delivery of possession within 36 months of the booking in emails between the parties also.
11. The complainant has stated that in Builder Buyer's Agreement sent to him on 21.07.2015, he had found variations from brochure i.e. (i) The project was marketed as built on 2 sides of the road but map supplied with BBA showed that the road was only on one side of the project. (ii) The project was marketed approx. on 13 acres land but in BBA only 11.22 acres land was shown. (iii) BBA contained Price Escalation clause. (iv) Due date of possession was shown 48 months from the date of BBA. Except variation-ii, other variations have not been proved. Variation-ii is not substantial. The complainant thereafter deposited instalment on 08.11.2015 as such it could not be a ground to go out of the deal. So far as delay is concerned, 48 months period would expire in July, 2019 as such at that time it could not be said that the project was unreasonably delayed. So far as letter dated 11.01.2022 is concerned, the complainant was not paying instalment, therefore, he cannot question subsequent delay.
12. Allotment Letter dated 08.10.2014 contained Payment Plan as "construction link payment plan". The opposite party raised demand of "On Start of Foundation" on 03.03.2017, which has not been deposited by the complainant and this complaint was filed on 11.05.2017. Therefore the complainant has committed breach of the contract and his earnest money and brokerage amount are liable to be forfeited. Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs. EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as "earnest money".
13. The complainant has filed IA/11334/2022 for correction of his name in cause title in the orders dated 27.08.2021, 08.03.2022, 12.07.2022 & 04.10.2022. IA is allowed. In the cause title of CC/1344/2017, in the orders dated 27.08.2021, 08.03.2022, 12.07.2022 & 04.10.2022 "Siddhartha" be read in place of "Siddartha".
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date refund, after deducting 10% of basic sale price and brokerage, if any paid, within a period of two months from the date of this judgment.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER